ponderance of the evidence that the sight of the plaintiff's left eye was entirely gone, or almost entirely gone, from the time he was struck on July 19, 1912, then you should entirely disregard the opinion expressed by said witness in answer to such hypothetical question." evidence. If the Jury should find for the de-eye was entirely gone, or almost entirely gone. fendant on that issue, the force and value I charge you that, unless you find from a preof the answers of the experts to his question might be very great; but if the jury should find upon that issue for the plaintiff, manifestly the absence of this important fact from the question of the defendant would very greatly weaken the value of the opinions expressed by the experts. Counsel on each side were entitled to include in their hypothetical questions such facts as they claimed were shown by the evidence. The evidential facts are generally in dispute, and it cannot be known where the jury will find the preponderance to be. Each party has the right to show the scientific conclusions to be drawn from the facts as he claims them to be, subject to the contingency that the jury shall find the facts to be as stated. "They simply make their answer, base their answer upon the facts that are submitted to them in the question, and, if there is any important fact, material fact, that is in the question which is not true, that is not proven to be true, then the question that the doctor makes his opinion upon, gives his opinion upon that question, then he has given it upon such a statement of facts," etc. The use of the words "material" and portant" is claimed to be erroneous. The proposition asserted by the defendant and approved by the Court of Appeals is quoted from General Convention of New Jerusalem Church et al. v. Croker et al., 7 Ohio Cir. Ct. R. 327, 333, as follows: does not establish are assumed as a part of the "Logically, if any facts which the evidence foundation of the expert opinion, the opinion is of no value for the purposes of the case. The theory upon which opinions of experts are admitted is that the witnesses have knowledge not tion for safe conclusions in a particular case." possessed by the jurors, which forms a founda It is urged that the charge of the court permitted the jury to determine what facts were material or important and what were not so, and that this is not the function of the jury. A fair statement of the view which supports the contention made by the defendant in error is found in the case of Burk v. Reese et al., 143 Lowa, 496, 121 N. W. 1016, cited by him. In that case the Supreme Court of Iowa had before it a charge in which is found the following language: "Should such assumed facts not be supported by the evidence, or should it turn out that such hypothetical questions are in important particulars incorrect, unfair, partial and untrue, no weight whatever can be given to the opinion founded thereon." The court say: "We are constrained to hold that, under the settled rule of our own cases, this instruction cannot be upheld. It leaves the jury to say for itself what facts embodied in the hypothetical "im-question are of so little importance that a failure to establish them by the evidence may be disregarded, and the answer still be allowed weight held to be reversible error." in reaching a verdict. This we have frequently It must be kept in mind that the expert testimony related to and was important upon the question whether the blindness of the plaintiff resulted from the injury received on the day of the accident. The proximate cause of a result is that which in a natural and continued sequence produces the result and without which it would not have happened. The burden was upon the plaintiff to show that his blindness resulted in a natural and continued sequence from the blow and without which it would not have resulted. Substantially this view has been supported in Fisher v. Travelers' Ins. Co., 124 Tenn. 450, 138 S. W. 316, Ann. Cas. 1912D, 1246; People v. Foley, 64 Mich. 148, 31 N. W. 94; and Dudley v. Gates, 124 Mich. 440, 83 N. W. 97, 86 N. W. 959. The opposite view is stated in 1 Wigmore on Evidence, § 680, thus: that, if the premises are ultimately rejected by "It follows as a necessary part of the theory the jury as untrue, the testimonial conclusion based on them must also be disregarded. is plain enough where a witness has claimed to have personal observation and is disbelieved. It is only where his testimony is based on hy"I say to you that the opinions of such ex-pothetical data that the same result needs to be perts based upon facts so assumed are of no emphasized. But the failure which justifies value, unless all of the assumed facts forming rejection must be a failure in some one or more the basis of such opinion are found by the jury important data, not merely in a trifling respect." to be true, and that, if you find that any fact assumed in the hypothetical question put to any such medical witness is untrue, then it will be your duty to disregard the opinion expressed by such medical expert." The court, at the request of the defendant before argument, charged the jury as follows: And also the following: "The plaintiff called as a witness one Dr. William H. Phillips, and propounded to him a hypothetical question in which it was stated as a fact that from the time the plaintiff's left eye was struck on July 19, 1912, the sight of his left This proposition finds support in Taylor v. Taylor, 174 Ind. 670, 93 N. E. 9; Grand Lodge I. O. M. A. v. Wieting, 168 Ill. 408, syl. 3, 48 N. E. 59, 61 Am. St. Rep. 123; People v. Vanderhoof, 71 Mich. 158, 176, 39 N. W. 28; and Blough et al. v. Parry et al., 144 Ind. 463, 40 N. E. 70, 43 N. E. 560. We think there is force in the contention that the jury should not be led by the instruc tion of the court to consider what are ma- | fact that from the time plaintiff's left eye terial and what are immaterial facts em- was struck the sight was entirely gone, bodied in a hypothetical question. They are or almost entirely gone; and, as shown, at the to act upon the evidence submitted to them request of defendant's counsel, the court and upon all of the evidence. The expert is charged the jury that: a scientific person, and it cannot be known "Unless you find from a preponderance of the to the jury what he regards as material or evidence that the sight of plaintiff's eye was enimmaterial in making up his answers. The time he was struck, you should entirely disretirely gone, or almost entirely gone, from the. correctness of this is sufficiently demonstrat-gard the opinion expressed by said witness in answer to such hypothetical question." ed by the testimony of the expert physicians in this case. The only sound theory upon which the expert's opinion is admitted at all is that he has the knowledge, training, and experience with which to form a better opinion on a given state of facts than one not so well equipped. On the other hand, there should be no such instruction as would invite a capricious search by the jury into features which might be wholly unimportant and unessential, thereby leading them to reject the testimony of an expert of ability and high character, whose opinion had been formed after a conscientious and successful effort to arrive at true conditions. The Supreme Court of Iowa, which has declared and enforced the strict rule above stated in a number of cases before it, said in a very recent case, Peterson v. Brackey, 143 Iowa, 75, 82, 119 N. W. 967, 969: "In the case last cited an instruction is criticized which left it to the jury to say whether the statements of fact assumed in the hypothetical questions were substantially correct, but it is not intimated that the case would have been reversed on this ground. It certainly is not necessary that the facts assumed in a hypothetical question shall be proven in every material detail to the dotting of an 'i' and the crossing of a 't,' and, while the court might properly have omitted the word 'substantially, we cannot be lieve that the jurors were misled by its use." Take for example the hypothetical question put by the defendant's counsel themselves in this case. The question covers some seven pages of the record, and embodies the facts which defendant's counsel believed to be shown by the preponderance of the testimony concerning the cause of plaintiff's blindness. Now it would be manifestly unjust to the defendant to so instruct the jury as to lead them to reject the opinion of the four physicians of recognized position whom the defendant had called, simply because they might find one assumption or statement of fact in the seven pages, however unimportant, to be not established by the preponderance of the evidence, although the counsel for the defendant had included the statement in his question in the full belief of its truth. Such a rule would be too technical, and would not contribute to the substantial administration of justice. But, if it be conceded that the use of the terms "important fact" and "material fact" by the trial court in its charge in this case is properly open to criticism, we think it clear that it could not have been prejudicial to the defendant. As already stated, the plaintiff propounded to the experts called by him a hypothet It is perfectly clear from the record that the matter of the blindness or almost blindness in the left eye immediately after the accident was the crux of the case. That was the material, the important, fact in dispute. The jury were distinctly told that, if the plaintiff failed to establish this claim, they should disregard the testimony of the plaintiff's experts. The hypothetical question of the plaintiff was very much shorter than that propounded by the defendant. In the defendant's hypothetical question no reference whatever was made to the claim or assumption that the plaintiff became blind or almost blind immediately after being struck. The physicians called by defendant at once conceded on cross-examination that, if it were shown that blindness in the left eye followed soon after the blow, an entirely different question would be presented. [2] On reflection it will be seen that any error of the court in the use of the words "material" and "important" did not result in prejudice to the defendant, but was rather in his favor; because the jury might have found that in defendant's hypothetical question of several pages there was included some assumption which was not sustained, and yet under the instruction given, if the jury regarded it as not "important" or "material,” they would disregard that assumption. They would not treat the expert's "opinion as of no value for the purposes of the case," but would give to the opinion such weight as they believed it to be entitled. thetical question include elements not proven The paramount query is not, Did the hypoby the evidence, the importance and materiality of which the jury were permitted to speculate upon? but, Was there omitted from the hypothetical question of defendant a concededly material and determinative assumption, which was included in the hypothetical question of plaintiff, and as to which the jury were instructed at request of defendant that, unless they found that plaintiff's assumption was sustained by the evidence, they should disregard the opinion of plaintiff's expert? And, although this requested charge was given before the argument, it was in no degree modified by what was said in the general charge. The Court of Appeals well said: tinct theories of the case, and the record shows "Here, then, were two well-defined and disthat they were zealously, thoroughly, and ade L tive sides of the controversy, and it is due to ordinances, adopt regulations, and appoint We are convinced that the strongly corroborated testimony that plaintiff had always been free from eye trouble prior to the injury, taken in connection with the vastly important testimony of plaintiff that he became blind in the left eye soon afterwards, was regarded by the triers of the facts as entitled to great weight. We think it clear that the learned court was in error in regarding the use of the words referred to by the trial court in its charge to the jury as conclusively prejudicial error. The judgment of the Court of Appeals will be reversed, and that of the common pleas affirmed. Judgment reversed. NICHOLS, C. J., and DONAHUE, WANAMAKER, NEWMAN, and MATTHIAS, JJ., concur. JONES, J., not participating. (94 Ohio St. 185) FLOTRON v. BARRINGER. (No. 15121.) (Syllabus by Editorial Staff.) In Gen. Code, § 4237, providing that the [Ed. Note.-For other cases, see Elections, For other definitions, see Words and Phrases, County. Petition by Willard Barringer to contest the election of John R. Flotron as member of the commission of the city of Dayton. From a judgment of the Court of Appeals reversing a judgment dismissing the petition, petitioner brings error. Reversed, and judgment of common pleas affirmed. The city of Dayton, under the authority conferred upon it by section 7 of article 18 of the Constitution of Ohio, as amended September 3, 1912, adopted a charter for its municipal government, which charter provides that a commission of five shall constitute the governing body, with power to pass At the election held in the city of Dayton in November, 1915, John R. Flotron and Willard Barringer were candidates for members of this city commission. The official return gave Flotron a small majority over Barringer. Barringer filed in the common pleas court of Montgomery county a petition to contest the election of Flotron. On motion the common pleas court dismissed this petition, for the reason that section 40 of the city charter provides that "the commission shall be judge of the election and qualifications of its members." Barringer then filed a petition in error in the Court of Appeals to reverse this judgment of the common pleas court dismissing his petition, and that court reversed the judgment of the common pleas court and remanded the cause for hearing on its merits, upon the theory that the provision in the charter of the city of Dayton that the commission shall be judge of the election and qualifications of its members is a concurrent remedy with the remedy provided by the General Assembly under authority of section 21 of article 2 of the Constitution. Lee Warren James, of Dayton, for plaintiff in error. John W. Sharts and Frank W. Krehbiel, both of Dayton, for defendant in error. PER CURIAM. The statutes of this state designate the legislative authority of a municipal corporation as "council." The charter of the city of Dayton, Ohio, provides for a form of government called the commissionmanager plan, and confers upon a commission the same legislative authority given by statute to the council of other cities of the state, and further provides the manner in which it shall exercise that legislative authority. Article 18 of the Constitution, as amended September 3, 1912, which relates to municipal corporations, refers to "the legislative authority of any city or village" without designating that authority by any name. is evident, therefore, that in so far as the legislative authority of a city is concerned, the terms "council" and "commission" are identical. It The charter of the city of Dayton, however, confers upon this commission further governing powers not possessed by the city council of other cities of the state, and not coming within those powers recognized as legislative. These added powers do not necessarily distinguish that body from a city council; for this charter might have retained the statutory council and conferred upon it all the powers and duties in addition to its legislative authority that it conferred upon the commission. It is not the name, but the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 230-CONSTRUCTION-"MAY” When a section of an existing law is amended by the General Assembly by striking out therefrom "may" and inserting in lieu thereof "shall," a clear intent is manifested to thereby alter the directory nature of the law and render it mandatory. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 311; Dec. Dig. 230. powers and duties, of the office that deter- [ 3. STATUTES This is in line with other statutory pro visions relating to all legislative bodies on this subject. There is no question whatever that the commission of Dayton is the council or legislative body of that city, and therefore comes within the full meaning, purpose and intent of section 4237, General Code. Judgment of the Court of Appeals reversed, and that of the common pleas court affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, and NEWMAN, JJ., concur. (94 Ohio St. 296) For other definitions, see Words and Phrases, Under the provisions of section 5653, General Code, as amended 104 Ohio Laws, p. 145, in counties where there is no society for the prevention of cruelty to children and animals, init is the mandatory duty of the county commiscorporated and organized as provided by law, sioners to transfer the surplus in the sheep fund in excess of $1,000 to the county board of education fund. School Districts, Cent. Dig. §§ 23, 24; Dec. Dig. [Ed. Note.-For other cases, see Schools and 17.] Error to Court of Appeals, Greene County. Application by the State on the relation of O. P. Mitman and others, as the County Board of Education, for mandamus to the Board of County Commissioners of Greene County. From a judgment of the Court of Appeals affirming a judgment dismissing the petition in mandamus, relators bring error. Action by R. D. Williamson and others, as the Board of County Commissioners of Greene County, against O. P. Mitman and others. From a judgment of the Court of Appeals affirming a judgment for plaintiff, defendants bring error. Reversed and remand STATE ex rel. MITMAN et al. v. BOARD OF ed, with instructions. (Supreme Court of Ohio. April 11, 1916.) 1. STATUTES 207 CONSTRUCTION The rule of statutory construction that, where conflicting provisions are found in an act of the General Assembly, the later in position repeals the earlier, is not to be arbitrarily employed, and when its exercise operates to defeat the manifest intent of the Legislature, it should never be resorted to. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 284; Dec. Dig. 207.] 2. STATUTES 207 CONSTRUCTION - CONFLICTING PROVISIONS. Both of the above-entitled cases were admitted to the Supreme Court on certiorari from the Court of Appeals of Greene county, as being cases of public interest. No. 15060 is an action commenced in the common pleas court of Greene county, under favor of sections 2296 to 2300, General Code, wherein R. D. Williamson and others, as board of county commissioners, asked authority from such court to transfer to the blind relief fund a balance of $1,300, the surplus in the sheep fund of the county after resection 5653, General Code. taining the sum of $1,000, as provided for by On June 5, 1915, by order and decree of such court, the commissioners were authorized to make the transfer. In matters of public or great general interest, where such conflicting provisions are not to On September 18, 1915, O. P. Mitman and be reconciled, the court should seek such construction as will make the act enforceable, and others, as the county board of education, in doing so will be governed by the manifest brought an action in the same court, being purpose and obvious policy and intent of the cause No. 15059 in this court, against the General Assembly to be gathered from the whole county commissioners, asking for a writ of act; and where the earlier clause of a section conforms to such policy and intent, it is not ren- mandamus against the board to compel them dered inoperative by a later inconsistent clause, to transfer such surplus to the county board out of harmony with the policy and intent. The of education, basing the right to such action later clause must be held nugatory, and there- on the provisions of section 5653, General [Ed. Note. For other cases, see Statutes, Code, as amended in 104 Ohio Laws, p. 133. Cent. Dig. § 284; Dec. Dig. 207.] The county commissioners, answering, ad fore disregarded. mitted the existence of the surplus, and as a [ specially mentioned county funds and limitdefense pleaded the judgment of June 5, 1915, ing the application of the surplus to the one hereinbefore set forth, directing the transfer fund, still retained in the paragraph in quesof the surplus to the blind relief fund. The tion, and at the end thereof the words "at county board of education demurred to the the direction of the county commissioners." answer, the demurrer was overruled, and, The retention of this clause in the paragraph plaintiff not desiring to plead further, the gives rise to the controversy. The defendpetition in mandamus was ordered dismissed. ants in error's position is that this language Meanwhile the county board of education in the act vests a discretion in the board and moved the court, in the case wherein the permits it to avail itself of the privileges of board of commissioners sought authority to sections 2297 to 2300, General Code, relative transfer the surplus to the blind relief fund, to the transfer of funds. to vacate and set aside such judgment, on the ground that the court had no jurisdiction to transfer the fund to the blind relief fund, or, if it had jurisdiction of the proceedings, it ought, in the interest of a proper and legal administration of the public funds, vacate and set aside the judgment as inadvertently made and entered. This motion was overruled, and leave to the board of education to file objections was denied. Error was prosecuted from the judgments in both cases to the Court of Appeals of Greene county. The Court of Appeals affirmed both judgments. M. J. Hartley, of Xenia, for plaintiffs in error county board of education. F. L. Johnson, Pros. Atty., of Xenia, for defendants in error board of county com❜rs. NICHOLS, C. J. The sole question involved in both cases is whether the last paragraph of section 5653, General Code, amended as above stated, is mandatory on the board of county commissioners. If it is, then the common pleas court, in its judgment of June 5, 1915, directing the transfer of this surplus to the blind relief fund, rendered an erroneous judgment, and the motion of the county board of education to vacate and set aside the same should have been sustained, and likewise the application for a peremptory writ of mandamus should have been granted. If this amended paragraph is to be construed as directory merely, and as vesting a discretion in the board of commissioners, then the judgments below in both cases and in both courts are correct. Before the amendment under consideration was adopted the paragraph read: "Any surplus not so transferred may be transferred to the school fund, the poor fund, or the road and bridge fund at the direction of the county commissioners." The amendment struck out "may" and substituted "shall." In the same paragraph the words "the school fund, the poor fund, or the road and bridge fund" were stricken from the act, and in their stead were inserted the words "the county board of education fund." Section 5653, as an entirety, has to do with the disposition of any surplus remaining in the special fund created by the tax on dogs, to be used for the payment of sheep claims. The amendment in question, while substituting the imperative for the permissive, and while withdrawing the four The plaintiffs in error maintain that this language is in obvious conflict with that part of the paragraph which precedes it, and that it is the duty of the court to interpret the paragraph with the view of ascertaining and giving effect to the manifest intention of the Legislature. The plaintiffs in error further maintain that such interpretation will lead with certainty to the conclusion that it was the manifest purpose of the General Assembly to vest no discretion in the board, but to provide virtually for an automatic transfer of the surplus to the newly created fund to be known as the county board of education fund. That a conflict does exist is conceded on all hands, and a construction of the statute is necessary. All authorities agree that where words conflict with each other, where the different clauses of the instrument bear upon each other, where clauses are out of harmony with other clauses, construction becomes necessary. It is, of course, not allowable to interpret that which has no need of interpretation. There is no safer or better settled canon of interpretation than that when language is clear and unambiguous it must be held to mean what it plainly expresses, even if such construction lead to clearly mischievous and absurd results. It is evident that the conflict we meet with here is one of point-blank repugnancy, and it is manifestly difficult to bring the provisions into any sort of harmony by any rule It is a rule of statutory of construction. construction that in the event of conflict, so that if one provision operates at all it will necessarily antagonize any effect of the other, both are void, but there is an associated rule of construction that, when different constructions may be put upon an act, one of which will accomplish the purpose of the Legislature, and the other render it nugatory, the former should be adopted. [1, 2] There is another rule of construction, seldom relied on, however, to the effect that where conflicting provisions are found in an act the latest in position repeals the other, being analogous to a somewhat similar rule applicable to the construction of wills. This is a more unsatisfactory rule, and is applied only as a dernier ressort. Indeed, as applied to the facts in this case, it is qualified, if not rendered quite innocuous, by an associated doctrine to the effect that: "When the first clause of a section conforms to the obvious policy and intent of the Legis |
